The second is the more familiar idea of political equality. This supposes that the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves, so that if some men have freedom of decision whatever the effect on the general good, then all men must have the same freedom. I do not want to defend or elaborate these ideas here, but only to insist that anyone who claims that citizens have rights must accept ideas very close to these.3
It makes sense to say that a man has a fundamental right against the government, in the strong sense, like free speech, if that right is necessary to protect his dignity, or his standing as equally entitled to concern and respect, or some other personal value of like consequence. It does not make sense otherwise.
So if rights make sense at all, then the invasion of a relatively important right must be a very serious matter. It means treating a man as less than a man, or as less worthy of concern than other men. The institution of rights rests on the conviction that this is a grave injustice, and that it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it. But then it must be wrong to say that inflating rights is as serious as invading them. If the government errs on the side of the individual, then it simply pays a little more in social efficiency than it has to pay; it pays a little more, that is, of the same coin that it has already decided must be spent. But if it errs against the individual, it inflicts an insult upon him that, on its own reckoning, it is worth a great deal of that coin to avoid.
So the first model is indefensible. It rests, in fact, on a mistake I discussed earlier, namely the confusion of society’s rights with the rights of members of society. “Balancing” is appropriate when the government must choose between competing claims of right—between the Southerner’s claim to freedom of association, for example, and the black man’s claim to an equal education. Then the government can do nothing but estimate the merits of the competing claims, and act on its estimate. The first model assumes that the “right” of the majority is a competing right that must be balanced in this way; but that, as I argued before, is a confusion that threatens to destroy the concept of individual rights. It is worth noticing that the community rejects the first model in that area where the stakes for the individual are highest, the criminal process. We say that it is better that a great many guilty men go free than that one innocent man be punished, and that homily rests on the choice of the second model for government.
The second model treats abridging a right as much more serious than inflating one, and its recommendations follow from that judgment. It stipulates that once a right is recognized in clear-cut cases, then the government should act to cut off that right only when some compelling reason is presented, some reason that is consistent with the suppositions on which the original right must be based. It cannot be an argument for curtailing a right, once granted, simply that society would pay a further price in extending it. There must be something special about that further cost, or there must be some other feature of the case, that makes it sensible to say that although great social cost is warranted to protect the original right, this particular cost is not necessary. Otherwise, the government’s failure to extend the right will show that its recognition of the right in the original case is a sham, a promise that it intends to keep only until that becomes inconvenient.
How can we show that a particular cost is not worth paying without taking back the initial recognition of a right? I can think of only three sorts of grounds that can consistently be used to limit the definition of a particular right. First, the government might show that the values protected by the original right are not really at stake in the marginal case, or are at stake only in some attenuated form. Second, it might show that if the right is defined to include the marginal case, then some competing right, in the strong sense I described earlier, would be abridged. Third, it might show that if the right were so defined, then the cost to society would not be simply incremental, but would be of a degree far beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity or equality might be involved.
It is fairly easy to apply these grounds to one problem the Supreme Court has recently faced, and must face soon again. The draft law provides an exemption for conscientious objectors, but this exemption, as interpreted by the draft boards, has been limited to those who object to all wars on religious grounds. If we suppose that the exemption is justified on the ground that an individual has a moral right not to kill in violation of his own principles, then the question is raised whether it is proper to exclude those whose morality is not based on religion, or whose morality is sufficiently complex to distinguish among wars. The Court has just held that the draft boards are wrong to exclude the former, and it will soon be asked to decide whether they are wrong to exclude the latter as well.
None of the three grounds I listed can justify either of these exclusions. The invasion of personality in forcing men to kill when they believe killing immoral is just as great when these beliefs are based on secular grounds, or take account of the fact that wars differ in morally relevant ways, and there is no pertinent difference in competing rights or in national emergency. There are differences among the cases, of course, but they are insufficient to justify the distinction. A government that is secular on principle cannot prefer a religious to a non-religious morality as such. There are utilitarian arguments in favor of limiting the exception to religious or universal grounds—an exemption so limited may be less expensive to administer, and may allow easier discrimination between sincere and insincere applicants. But these utilitarian reasons are irrelevant, because they cannot count as grounds for limiting a right.
What about the anti-riot law, as applied in the Chicago trial? Does that law represent an improper limitation of the right to free speech, supposedly protected by the First Amendment? If we were to apply the first model for government to this issue, the argument for the anti-riot law would look strong. But if we set aside talk of balancing as inappropriate, and turn to the proper grounds for limiting a right, then the argument becomes a great deal weaker. The original right of free speech must suppose that it is an assault on human personality to stop a man from expressing what he honestly believes, particularly on issues affecting how he is governed. Surely the assault is greater, and not less, when he is stopped from expressing those principles of political morality that he holds most passionately, in the face of what he takes to be outrageous violations of these principles.
It may be said that the anti-riot law leaves him free to express these principles in a non-provocative way. But that misses the point of the connection between expression and dignity. A man cannot express himself freely when he cannot match his rhetoric to his outrage, or when he must trim his sails to protect values he counts as nothing next to those he is trying to vindicate. It is true that some political dissenters speak in ways that shock the majority, but it is arrogant for the majority to suppose that the orthodox methods of expression are the proper ways to speak, for this is a denial of equal concern and respect. If the point of the right is to protect the dignity of dissenters, then we must make judgments about appropriate speech with the personalities of the dissenters in mind, not the personality of the “silent” majority for whom the anti-riot law is no restraint at all.
So the argument that the personal values protected by the original right are less at stake in this marginal case fails. We must consider whether competing rights, or some grave threat to society, nevertheless justify the anti-riot law. We can consider these two grounds together, because the only plausible competing rights are rights to be free from violence, and violence is the only plausible threat to society that the context provides.
I have no right to burn your house, or stone you or your car, or swing a bicycle chain against your skull, even if I find these natural means of expression. But the defendants in the Chicago trial were not accused of direct violence; the argument runs that the acts of speech they planned make it likely that others would do acts of violence, either in support of or out of hostility to what they said. Does this provide a justification?
The question would be different if we could say with any confidence how much and what sort of violence the anti-riot law might be expected to prevent. Will it save two lives a year, or two hundred, or two thousand? Two thousand dollars of property, or two hundred thousand, or two million? No one can say, not simply because prediction is next to impossible, but because we have no firm understanding of the process by which demonstration disintegrates into riot, and in particular of the part played by inflammatory speech, as distinct from poverty, police brutality, blood lust, and all the rest of human and economic failure. The government must try, of course, to reduce the violent waste of lives and property, but it must recognize that any attempt to locate and remove a cause of riot, short of a reorganization of society, must be an exercise in speculation, trial and error. It must make its decisions under conditions of high uncertainty, and the institution of rights, taken seriously, limits its freedom to experiment under such conditions.
It forces the government to bear in mind that preventing a man from speaking or demonstrating offers him a certain and profound insult, in return for a speculative benefit that may in any event be achieved in other if more expensive ways. When lawyers say that rights may be limited to protect other rights, or to prevent catastrophe, they have in mind cases in which cause and effect are relatively clear, like the familiar example of a man falsely crying fire in a crowded theater.
But the Chicago story shows how obscure the causal connections can become. Were the speeches of Hoffman or Rubin necessary conditions of the riot? Or had thousands of people come to Chicago for the purposes of rioting anyway, as the government also argues? Were they in any case sufficient conditions? Or could the police have contained the violence if they had not been so busy contributing to it, as the staff of the President’s Commission on Violence said they were?
These are not easy questions, but if rights mean anything, then the government cannot simply assume answers that justify its conduct. If a man has a right to speak, if the reasons that support that right extend to provocative political speech, and if the effects of such speech on violence are unclear, then the government is not entitled to make its first attack on that problem by denying that right. It may be that abridging the right to speak is the least expensive course, or the least damaging to police morale, or the most popular politically. But these are utilitarian arguments in favor of starting one place rather than another, and such arguments are ruled out by the concept of rights.
This point may be obscured by the popular belief that political activists look forward to violence and “ask for trouble” in what they say. They can hardly complain, in the general view, if they are taken to be the authors of the violence they expect, and treated accordingly. But this repeats the confusion I tried to explain earlier between having a right and doing the right thing. The speaker’s motives may be relevant in deciding whether he does the right thing in speaking passionately about issues that may inflame or enrage the audience. But if he has a right to speak, because the danger in allowing him to speak is speculative, his motives cannot count as independent evidence in the argument that justifies stopping him.
But what of the individual rights of those who will be destroyed by a riot, of the passer-by who will be killed by a sniper’s bullet or the shopkeeper who will be ruined by looting? To put the issue in this way, as a question of competing rights, suggests a principle that would undercut the effect of uncertainty. Shall we say that some rights to protection are so important that the government is justified in doing all it can to maintain them? Shall we therefore say that the government may abridge the rights of others to act when their acts might simply increase the risk, by however slight or speculative a margin, that some person’s rights to life or property will be violated?
Some such principle is relied on by those who oppose the Supreme Court’s recent liberal rulings on police procedure. These rulings increase the chance that a guilty man will go free, and therefore marginally increase the risk that any particular member of the community will be murdered or raped or robbed. Some critics believe that the Court’s decisions must therefore be wrong.
But no society that purports to recognize a variety of rights, on the ground that a man’s dignity or equality may be invaded in a variety of ways, can accept such a principle. If forcing a man to testify against himself, or forbidding him to speak, does the damage that the rights against self-incrimination and the right of free speech assume, then it would be contemptuous for the state to tell a man that he must suffer this damage against the possibility that other men’s risk of loss may be marginally reduced. If rights make sense, then the degrees of their importance cannot be so different that some count not at all when others are mentioned.
Of course the government may discriminate and may stop a man from exercising his right to speak when there is a clear and substantial risk that his speech will do great damage to the person or property of others, and no other means of preventing this are at hand, as in the case of the man falsely shouting fire in a theater. But we must reject the suggested principle that the government can ignore rights to speak when life and property are in question. So long as the impact of speech on these other rights remains speculative and marginal, it must look elsewhere for levers to pull.
I said at the beginning of this essay that I wanted to show what a government must do that professes to recognize individual rights. It must dispense with the claim that citizens never have a right to break its law, and it must not define citizens’ rights so that these are cut off for supposed reasons of the general good. The present government’s policy toward civil disobedience, and its campaign against vocal protest, its enforcement of the anti-riot law, may therefore be thought to count against its sincerity.
One might well ask, however, whether it is wise to take rights all that seriously after all. America’s genius, at least in her own legend, lies in not taking any abstract doctrine to its logical extreme. It may be time to ignore abstractions, and concentrate instead on giving the majority of our citizens a new sense of their government’s concern for their welfare, and of their title to rule.
That, in any event, is what the Vice President seems to believe. In a recent policy statement on the issue of weirdos and social misfits, he said that the liberals’ concern for individual rights was a headwind blowing in the face of the ship of state. That is a poor metaphor, but the philosophical point it expresses is very well taken. He recognizes, as many liberals do not, that the majority cannot travel as fast or as far as it would like if it recognizes the rights of individuals to do what, in the majority’s terms, is the wrong thing to do.
The Vice President supposes that rights are divisive, and that national unity and a new respect for law may be developed by taking them more skeptically. But he is wrong. Our country will continue to be divided by its social and foreign policy, and if the economy grows weaker the divisions will become more bitter. If we want our laws and our legal institutions to provide the ground rules within which these issues will be contested, then these ground rules must not be the conqueror’s law that the dominant class imposes on the weaker, as Marx supposed the law of a capitalist society must be. The bulk of the law—that part which defines and implements social, economic, and foreign policy—cannot be neutral. It must state, in its greatest part, the majority’s view of the common good. The institution of rights is therefore crucial, because it represents the majority’s promise to the minorities that their dignity and equality will be respected. When the divisions among the groups are most violent, then this gesture, if law is to work, must be most sincere.
The institution requires an act of faith on the part of the minorities, because the scope of their rights will be controversial whenever they are important, and because the officers of the majority will act on their own notions of what these rights really are. Of course these officials will disagree with many of the claims that a minority makes. That makes it all the more important that they take their decisions gravely. They must show that they understand what rights are, and they must not cheat on the full implications of the doctrine. The government will not re-establish respect for law without giving the law some claim to respect. It cannot do that if it neglects the one feature that distinguishes law from ordered brutality. If the government does not take rights seriously, then it does not take law seriously either.
He need not consider these ideas to be axiomatic. He may, that is, have reasons for insisting that dignity or equality are important values, and these reasons may be utilitarian. He may believe, for example, that the general good will be advanced, in the long run, only if we treat indignity or inequality as very great injustices, and never allow our opinions about the general good to justify them. I do not know of any good arguments for or against this sort of "institutional" utilitarianism, but it is consistent with my point, because it argues that we must treat violations of dignity and equality as special moral crimes, beyond the reach of ordinary utilitarian justification.↩
Rights and Interests March 11, 1971
He need not consider these ideas to be axiomatic. He may, that is, have reasons for insisting that dignity or equality are important values, and these reasons may be utilitarian. He may believe, for example, that the general good will be advanced, in the long run, only if we treat indignity or inequality as very great injustices, and never allow our opinions about the general good to justify them. I do not know of any good arguments for or against this sort of “institutional” utilitarianism, but it is consistent with my point, because it argues that we must treat violations of dignity and equality as special moral crimes, beyond the reach of ordinary utilitarian justification.↩